Sotomayor slams controversial remarks by prosecutor
February 25th, 2013
10:22 AM ET
1 year ago

Sotomayor slams controversial remarks by prosecutor

Washington (CNN) – Two members of the Supreme Court took the unusual step of speaking out over racially insensitive remarks by a federal prosecutor in a drug case, when rejecting review of the defendant's appeal.

Justice Sonia Sotomayor wrote a strongly worded statement Monday, saying the prosecutor's remarks about an African-American suspect were "an affront to the Constitution's guarantee of equal protection of the laws."

The prosecutor–whom Sotomayor refused to name–said during cross-examination of a drug conspiracy case: "You've got African-Americans, you've got Hispanics, you've got a bag full of money. Does that tell you–a light bulb doesn't go off in your head and say, This is a drug deal?"

Sotomayor, the only Hispanic on the high court, agreed with the majority that the appeal should be rejected for a variety of procedural reasons, but was nevertheless adamant on her larger point.

"It is deeply disappointing to see a representative of the United States resort to this basic tactic more than a decade into the 21st century," she said. "We expect the government to seek justice, not fan the flames of fear and prejudice."

Most appeals are summarily rejected by the high court without comment. Those that do merit a brief written response typically involve a justice objecting to the denial of review. But here, Sotomayor and Justice Stephen Breyer supported the denial, and decided to take the next step and comment on the source of the controversy.

"I write to dispel any doubt whether the court's denial of certiorari should be understood to signal our tolerance of a federal prosecutor's racially charged remark," said Sotomayor. "It should not."

Bongani Calhoun was convicted of participating in a drug buy in Texas and given 15 years behind bars on various charges. The issue was whether he was a willing participant, or just happened to be present when others attempted to purchase narcotics from undercover federal agents.

The prosecutor repeatedly pressed Calhoun on the stand about the defendant's claim he did not want to be in the hotel room in the first place. That is when the inflammatory remarks were made.

Calhoun's lawyers did not formally challenge the statement, or a subsequent remark by the prosecutor, who told the jury, "What does your common sense tell you that these people are doing in a hotel room with a bag full of money, cash? None of these people are Bill Gates or computer [magnates]? None of them are real estate investors."

The justices in rejecting Calhoun's appeal apparently accepted the lower appeals court's conclusion that the inmate never established that the insensitive comments necessarily prejudiced the outcome of the criminal trial.

Sotomayor and Breyer also criticized the Justice Department for its initial, tepid reaction to the remarks, with officials telling an appeals court they were only "impolitic." The solicitor general, the Obama administration's top lawyer before the high court, later acknowledged the remarks were "unquestionably improper."

"I hope never to see a case like this again," concluded Sotomayor.

The case is Calhoun v. U.S. (12-6142).


Filed under: Sonia Sotomayor • Supreme Court
soundoff (37 Responses)
  1. Tony in Maine

    "Impolitic" to describe those remarks is like calling a tsunami, surf.

    It is not protected by the First Amendment since it is not prohibited speech. It should be grounds for dismissal.

    February 25, 2013 10:33 am at 10:33 am |
  2. Dominican mama 4 Obama

    It is deeply disappointing to see a representative of the United States resort to this basic tactic more than a decade into the 21st century," she said. "We expect the government to seek justice, not fan the flames of fear and prejudice."
    -------------------------------------------------
    HEAR!! HEAR Ms. Sotomayor.
    Change we can believe in!!

    February 25, 2013 10:33 am at 10:33 am |
  3. Rudy NYC

    I note that she expressed strong indignation, but not one ounce of surprise.

    February 25, 2013 10:36 am at 10:36 am |
  4. Larry L

    Ms. Sotomayor believes in equality and will interpret the Constitution with fairness and maturity. Unlike the right-wingers on the bench, she doesn't see her position as a mechanism to help political parties achieve their goals.

    February 25, 2013 10:43 am at 10:43 am |
  5. Lynda/Minnesota

    "I hope never to see a case like this again," concluded Sotomayor.
    -------------–

    Yeah, well. Judging by the First Lady Michelle Obama comments coming from the right wing of society this past week or so, I have my doubts. Strike that. This past 4 years or so.

    I congratulate Ms. Sotomayor for stepping up to the plate and saying enough is enough. There are so few willing to do so publicly.

    It IS the change I voted for and it IS the change I believe in. We've got much more to do, though. All of us.

    February 25, 2013 10:45 am at 10:45 am |
  6. Logic N LA

    While I agree with her in prinicple, as a memeber of the court, she should not have said anything. The justices are supposed to be above any comment or politics other than court business.

    February 25, 2013 10:47 am at 10:47 am |
  7. PatheticCNN

    In today's 21st century Black People have either equal or more opportunities to be successful than any other race in America unless they stop crying foul about racism and slavery. Those days are part of a continuous evolution of human civilization.

    February 25, 2013 10:49 am at 10:49 am |
  8. cbr

    It is about time that those who use generalities and even resort to this type of profiling are called on it. For years we have heard and read about the traits often attributed to one nationality or another. We just do not seem able to stop this habit. We, as Americans should be saying no more. It is time for us all to express our indignation.

    Innocent or guilty – do not apply stereotypes hoping that your words will influence the juries.

    February 25, 2013 10:50 am at 10:50 am |
  9. Sniffit

    "While I agree with her in prinicple, as a memeber of the court, she should not have said anything. The justices are supposed to be above any comment or politics other than court business."

    This isn't politics. CNN posting it in the "political ticker" doesn't make it politics either. That prosecutor's rancid statement is indicative of a wider, systemic, institutionalized problem THAT STILL EXISTS in the judicial system. Pretending this is "just politics" in hopes it can yet again be swept under the rug by the MSM and to try to flip the blame and focus here to Justice Sotomayor is cowardly.

    February 25, 2013 10:56 am at 10:56 am |
  10. The Real Tom Paine

    Ironic that Clarence Thomas said nothing, as usual. If he could avoid having to write opinions, he would do so.

    February 25, 2013 10:58 am at 10:58 am |
  11. The NRA is a T e r r o r i st organisation....Arming Mentally Unbalanced People to Kill Innocent Children

    @PatheticCNN,
    I agree with your comment that we all have equal opportunities, so why is this prosecutor race baiting...or throwing out racial inuendo's?

    We should also be equal under the eyes of the law....not stereotyping people based on race!!!

    So Sotomayor was just calling out this idiot prosecutor for race baiting & racial inuendos....NOT crying foul about racism and slavery as your Pathetic self is alluding to!!!

    February 25, 2013 10:59 am at 10:59 am |
  12. Joi Gibson

    What an ignorant thing for a federal prosecutor to say – or any prosecutor for that matter. Thank you Justices Sotomayor and Breyer for speaking up.

    February 25, 2013 11:02 am at 11:02 am |
  13. sonny chapman

    'If he didn't do that crime, he probably did something else that should get him jail time"-Justice A. Scalia, 2002, at a Legal Round Table(in jest of course)

    February 25, 2013 11:03 am at 11:03 am |
  14. wade

    Is she the biggest hypocrite ever or what? Now she acts indignant!

    February 25, 2013 11:08 am at 11:08 am |
  15. Dominican mama 4 Obama

    @ Lynda Minesota who said:
    I"t IS the change I voted for and it IS the change I believe in. We've got much more to do, though. All of us."
    And Rudy NYC who said:
    "I note that she expressed strong indignation, but not one ounce of surprise"
    -------------------------------------------------
    I agree with you both.
    Interesting Rudy how she was one of ONLY two Justices to speak out against this type of language, and what I believe to be an entrenched mindset not only in our justice system, but one that permeates our society here in America. The other justices should've spoken up, including that ninny Clarence Thomas.
    As Lynda pointed out, when we read the comments directed at our First Lady doing something as innocuous as presenting an Oscar we are witnessing the fact that there is a certain segment of our population, albeit, and thankfully, a minority segment, that has "boxed in" what their expectations of so-called minoriites are and where they should be seen and NOT seen.
    Let me remind that dwindling"minority" that the majority of us do not share your disease, you are a dying breed and the sooner you accomplish that the better as far as I'm concerned.

    February 25, 2013 11:08 am at 11:08 am |
  16. horace

    Sotomayor has made racist statements herself. She once said that all white men should be castrated.

    February 25, 2013 11:11 am at 11:11 am |
  17. Rudy NYC

    Logic N LA

    While I agree with her in prinicple, as a memeber of the court, she should not have said anything. The justices are supposed to be above any comment or politics other than court business.
    -----------------------------------------
    Do you think remarks and opinions expressed in open court by lower court judges regarding the disposition of the cases that they hear are not court business? If not, then please do tell us what is.

    February 25, 2013 11:12 am at 11:12 am |
  18. Sniffit

    A statement like that should have resulted in an immediate mistrial and referral of the offending prosecutor to the state's board of bar overseers. PERIOD. As an attorney, I find it disgusting that he wasn't reprimanded or suspended. He knew EXACTLY what he was doing when he said that.

    February 25, 2013 11:15 am at 11:15 am |
  19. Pete

    @ Rudy,not surprising at all since Pres.Obamas inaugeration that the ignorent racist are still in force mainly the republican reps in congress ..Racism is alive and well especially in the red states the ones that still think the civil war is still going on and can't believe the north won that one..Rudy,you as well as I can't advocate enough about the republicans short term memory and constant denile when you shove facts in their faces about their partys debacles so please continue your quest in showing republicans just how obstructionistic,racist they are and add divisiveness for good measure.Yah can't cover all the bases all the time but it helps,doesn't it!!

    February 25, 2013 11:17 am at 11:17 am |
  20. ART

    PatheticCNN you must live in an alternate universe or just like walking around with your head up your you know what.

    February 25, 2013 11:29 am at 11:29 am |
  21. Guest

    If you really stand for equality you should strongly oppose any designation that stipulates an individual is hispanic, african, other on any and all governement documentation/forms (federal, state, local) and that no special treatment is given in consideration of the color of your skin. If you expect something because of your skin color....YOU ARE RACIST!

    February 25, 2013 11:37 am at 11:37 am |
  22. The REAL Truth...

    Part of thinks that the statement may have been made in the "heat of the moment".. part of me agrees with other posters on it being racist. I see both sides.. .reality is that a large proportion of what the prosecutor referred to, is indeed true. I also find it strange that Sotomayor responded in the manner she did – sounds like she was personally affronted by the remarks, which would make her response as "impolitic" as the prosecutors.

    I seriously doubt the prosecutor was trying to "fan the flames of fear and prejudice." If you want to find that, all you have to is look at the Grand Obstructionist Party. They have done nothing to help this country move away from the economic abyss it was falling into in 2008, all the while blaming the Dem's and Obama for being divisive.

    February 25, 2013 11:43 am at 11:43 am |
  23. Guest

    Get over your ethnicity and color, everyone else has. And if you dont like the criticism that befalls you, look in the mirror. But I suppose if you dont get head of the line privileges and consideration based on color/ethnicity I would be a racist??? Stupid double standards.

    February 25, 2013 11:46 am at 11:46 am |
  24. S.B. Stein E.B. NJ

    I agree that there should be some action taken against that prosecutor. His or her mouth should not be the spokespiece for the government on any level. He or she should left to doing the research for the court case and be left out of the lime light and court room.

    February 25, 2013 11:46 am at 11:46 am |
  25. Al-NY,NY

    If a prosecutor made some comment about Christians and how they "persecute....." all the tightie righties on here would be screaming about profiling and prejudice.

    February 25, 2013 11:47 am at 11:47 am |
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